If you have held an H-1B visa for nine years, renewed your status three or four times, and built a career on the assumption that an unchanged situation carries forward the last approval, that assumption is now formally under threat. The US Department of Homeland Security (DHS) published a proposed rule in the Federal Register on October 14, 2026, that would delete the deference provision at 8 CFR 214.1(c)(5), which instructs US Citizenship and Immigration Services (USCIS) officers to give weight to earlier approvals when the same worker, employer, and job return for an extension.

Public comments are open until November 13, 2026, under DHS Docket No. USCIS-2026-0529. The window is short. If you or your legal team have anything useful to say, the deadline is now the most important date on the calendar.

What the proposed rule actually changes

Deference has a turbulent regulatory history. USCIS first issued the guidance in 2004, rescinded it in 2017, reinstated it in 2021, and then DHS formally codified it in December 2024. The October 2026 proposal would reverse that codification entirely. DHS argues that the deference standard may have allowed erroneous approvals to compound over successive renewals and created conditions where fraudulent petitions were harder to detect. In the agency's own framing, removing deference would help ensure USCIS officers fully review the facts and evidence in every case.

The change is not limited to H-1B. Because the deference provision applies to all petitions filed on Form I-129, L-1 intracompany transferees and O-1 workers would also lose the presumption. Current rules remain in effect until a final rule takes effect, and no effective date has been announced.

Rajiv Dabhadkar of the National Organisation for Software and Technology Professionals (NOSTOPS) framed the scope of the change precisely:

Removing deference would not itself change green card queue positions or automatically invalidate existing H-1B approvals. However, it could affect how subsequent petitions are assessed while individuals wait for permanent residency.

Why the green card backlog makes this sharper

The workers most exposed are those who renew most often, and that cohort is concentrated among Indian nationals. According to USCIS data, Indians accounted for approximately 70% of H-1B beneficiaries in FY2025. The National Foundation for American Policy (NFAP) estimates that close to one million Indians currently sit in the employment-based green card backlog, accounting for roughly 79% of the 1.26 million people waiting.

NFAP modeling of projected wait times carries figures that are difficult to dismiss: an Indian national entering the EB-2 queue in 2026 could face a wait of 179 years, while the EB-3 backlog implies approximately 38 years. That is not a policy abstraction. It means people build entire working lives on a chain of temporary extensions, each one now potentially subject to a full re-examination of eligibility.

Immigration attorney Bhumireddy Sai Srinivas Reddy described the practical shift this way:

For Indian H-1B holders in the EB-2 and EB-3 backlog, this rule changes the nature of the green-card wait itself. Most are living on three-year AC21 extensions, four, five, six renewals over a decade. Today each renewal presumes the last approval was correct. Under the proposed rule, every renewal becomes a fresh trial of eligibility, with specialty occupation, wage level, and employer relationship all back on the table.

The 240-day problem: delay, not denial

The most concrete risk is not outright denial. It is timing. An H-1B holder whose status expires while a timely extension is pending can continue working for up to 240 days, a window that was itself extended from the original 120-day limit established in 1991. DHS's own regulatory estimate projects that eliminating deference would generate approximately 6,044 additional Requests for Evidence (RFEs) per year. Every RFE pauses a petition while the employer assembles and submits further documentation.

Reddy explained the consequence plainly: the real risk is delay, not denial. More RFEs mean more petitions pending past the 240-day work-authorization window, and a worker who hits day 241 must stop working, even with an approved I-140 and a decade of lawful status. The removal of the 540-day automatic extension that H-4 EAD holders previously relied on compounds the exposure: an H-4 spouse's work authorization can lapse in the same queue.

Delays at major sponsors are already documented. Microsoft, Adobe, TCS, and Cognizant, among others, have reported stalled H-1B extension requests despite paying for premium processing. Add a new wave of RFEs to an already congested pipeline and more cases move toward the day-241 threshold, which for many two-income households means unpaid leave for both earners simultaneously.

For employees: what to do before November 13

The petition belongs to your employer under US immigration law, but the exposure lands on you. As the Vasquez Law Firm noted, a worker may feel the practical effects even though the employer is typically the petitioner. Several concrete steps reduce your exposure:

• Map your calendar now. Track your status expiry, the date your extension is filed, and how many days of the 240-day window a typical RFE response cycle could consume. Ask your employer's immigration counsel how far ahead of expiry they plan to file, since a late filing leaves less margin for an RFE response.
• Build your own evidence file. Every renewal may now reopen specialty occupation status, wage level, and the employer relationship. Keep copies of job descriptions, current org charts, and pay records so that a USCIS evidence request does not require starting from scratch.
• Check your salary against market benchmarks. Wage level is one of the elements that could be re-examined in any fresh review. Knowing where your pay sits for your role and location allows you to spot potential problems before USCIS does. Verified salary data from real employees in your field and metro area is the most useful reference point here.
• Plan for the H-4 household. If your spouse works on an H-4 Employment Authorization Document (EAD), map their renewal timeline against yours. With the 540-day automatic extension gone, both statuses can stall in the same processing queue.
• Submit a comment on the docket. Individuals and households can file comments on USCIS-2026-0529 at regulations.gov before November 13, 2026. First-hand accounts of renewal timelines and the practical impact of RFE delays carry more weight in the administrative record than general objections.

Dabhadkar cautioned that additional scrutiny creates uncertainty over continued employment, affecting workers' career decisions and long-term planning. If a job change is on your horizon, factor in that a new sponsor's petition faces the same full eligibility review, and research prospective employers carefully before committing. Verified employer reviews give you a signal on how a sponsor handles immigration support before you are mid-process.

For HR and employers: costs, layoffs, and Executive Order 14431

DHS's own estimate projects approximately $133,987 in additional annual petitioner costs across the rule. Treat that as a floor, not a ceiling. Dabhadkar expects higher legal and administrative costs from increased evidence requests, and smaller employers without in-house immigration counsel will absorb each RFE more painfully than large sponsors with dedicated teams.

The deference proposal lands on top of Executive Order 14431, which President Trump signed on September 18, 2026, directing agencies to evaluate H-1B program integrity. The order directs agencies to consider whether a sponsoring employer laid off similarly situated US workers in the prior year or plans to do so. It also required the Department of Labor (DOL) to begin reviewing prior Labor Condition Applications (LCAs) within 30 days of the order to assess enforcement action.

On October 8, Labor Secretary Keith Sonderling announced that DOL had suspended Cognizant, Infosys, TCS, Wipro, HCL, Capgemini, Microsoft, and Adobe from the PERM program, citing criminal and federal investigations. For HR teams at any company that has conducted layoffs in the past year, that combination means recent workforce reductions are now part of the immigration compliance story.

Practical steps for HR to evaluate this quarter:

• Model every pending extension against the 240-day rule. Build an estimated RFE response cycle into each timeline and flag any sponsored employee whose filing date leaves thin margin before the 240-day window closes.
• Budget for RFE remediation. Set aside legal spend for renewals that previously processed quickly under deference assumptions. The baseline cost estimate in the regulatory filing is a starting point for that budget conversation.
• Document your workforce decisions clearly. Maintain a clear record of why roles were eliminated and how sponsored positions differ from those cut, to address any EO 14431 layoff-scrutiny questions that arise during USCIS or DOL review.
• Prepare day-241 contingency plans in writing. Decide in advance how the organization will handle an employee who reaches day 241 without a resolved extension, including options such as temporary remote work from abroad or unpaid leave, and communicate that framework to affected employees before they need it.
• Submit an employer comment on the docket. Organizations can document operational impact on USCIS-2026-0529 before the November 13 close. Quantified RFE costs and specific operational consequences are most useful to the administrative record.

A wider wave of proposals

The deference rule is one item in a crowded regulatory agenda. In a statement issued on October 30, the diaspora organization Indiaspora flagged proposed petition fees exceeding $100,000 for high-tech and healthcare employers, a wage-weighted lottery, proposed fees of up to $70,000 on Optional Practical Training (OPT) and STEM OPT extensions, and proposals to eliminate the 60-day grace period for laid-off foreign workers. Sanjeev Joshipura, executive director of Indiaspora, warned that H-1B workers from India have helped make America the world's innovation leader and that driving them away could have very serious consequences for communities nationwide, from major cities to small towns.

On Capitol Hill, Senator Jon Husted has introduced a bill that would replace the $60,000 exempt-worker salary threshold, which has not changed since 1998, with twice the Social Security Administration's national average wage index, a figure that would currently land at roughly $140,000. Senator Husted has argued that the frozen threshold has allowed companies to sidestep hiring American workers through what he calls a loophole that has gone unaddressed for nearly three decades. Representative David Schweikert introduced the SMARTER Act in September, proposing a points-based green card system. Fragomen partner K. Edward Raleigh has assessed that enactment of proposed H-1B legislation before the end of this year remains unlikely, and US midterm elections fall on November 3.

Secretary of State Marco Rubio has stated that the policy direction is not built around India and is not focused on India, while acknowledging it happens to impact Indian nationals who want to work in the United States and whom US businesses are trying to bring in, framing it as a global posture rather than a bilateral one.

What this means for the United States workforce right now

Legislation can stall in committee. The deference rule needs no vote: it advances through federal rulemaking under the Administrative Procedure Act, and the comment window closes November 13, 2026. The Society for Human Resource Management (SHRM), which represents approximately 340,000 HR professionals, has emphasized that immigration program integrity and workforce continuity are not mutually exclusive goals, and that HR teams should treat the current rulemaking calendar as an operational planning trigger, not a background news item.

For sponsored employees, the practical task is the same regardless of where the regulatory agenda ultimately lands: get your dates on paper, build your evidence file now, and understand exactly what happens to your household income if a petition is still pending on day 241. For HR leads, the analogous task is to know which employees in your sponsored population have thin margin on their timelines and to have the contingency conversation before it becomes urgent. The comment docket is open. The clock is running.